The court established that inconsistencies in witness testimony and medical evidence can justify the suspension of a sentence pending appeal.

JUDGMENT

1. This second application for suspension of sentences under Section 389 CrPC has been preferred on behalf of the appellantapplicant Dilip who has been convicted and sentenced for the offence under Section 302/34 IPC vide the judgment dated 08.01.2021 passed by learned Additional Sessions Judge, Banswara, Camp Kushalgarh in Sessions Case No.47/2016.

2. Learned Public Prosecutor has chosen not to file reply to the application for suspension of sentence and proposed to argue the matter orally.

3. Heard learned counsel for the parties and perused the material available on record.

4. The first application for suspension of sentences filed on behalf of the appellant was dismissed as, his counsel Shri Shambhoo Singh did not press the same after arguing the matter at some length. Learned counsel Shri Vikram Singh representing the appellant-applicant urged that the appellant-applicant was on bail during the course of trial. He drew the Court's attention to the statement of the star prosecution witness, the child Pappu (PW.2) and urged that as per the evidence of this witness, the accused Dilip and Tita both inflicted lathi blow to his father, the deceased Dala. Attention of this Court was also drawn to the statement of medical jurist Dr. Lalitpal (PW.12) who conducted postmortem on the dead body of deceased Dala and it was urged that only one injury on the head of the deceased was noticed which resulted into fracture of the underlying bones and damaged brain causing death. Shri Vikram Singh urged that as there is a distinct allegation of the witness that two accused persons inflicted the blow on the head of the deceased and as only one injury was found on the head of the deceased, the ocular testimony is totally contradicted by the evidence of the medical jurist. It was further submitted that even if the prosecution case is admitted to be true, at the highest, the offence, if any would not travel to beyond Section 304 Part II/325 IPC. On these submissions, Shri Virkam Singh craves acceptance of bail.

5. Learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. However, he too is not in a position to dispute the fact that as per the testimony of child witness Pappu PW.2, the appellant as well as the co-accused Tita allegedly inflicted lathi blows on the head of the deceased. As per the medical jurist Dr. Lalitpal (PW.12), only one injury was found on the head of the deceased Dala when postmortem was carried out.

6. In this background, we are of the opinion that the appellantapplicant has available to him strong grounds for assailing the impugned judgment. Hearing of the appeal is likely to consume time.

7. Accordingly, the application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Addl. Sessions Judge, Banswara Camp Kushalgarh vide judgment dated 08.01.2021 in Sessions Case No.47/2016 (CIS No.113/2016) against the appellantapplicant Dilip S/o Shri Hurtan @ Hurtang shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail, provided he executes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 07.09.2021 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

1. That he will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.

3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

8. The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related